Proposed Rule2022-01254
Visitor Experience Improvements Authority Contracts
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 25, 2022
Issuing agencies
Interior DepartmentNational Park Service
Abstract
This proposed rule would implement the Visitor Experience Improvements Authority given to the National Park Service by Congress in Title VII of the National Park Service Centennial Act. This authority allows the National Park Service to award and administer commercial services contracts and related professional services contracts for the operation and expansion of commercial visitor facilities and visitor services programs in units of the National Park System.
Full Text
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<title>Federal Register, Volume 87 Issue 16 (Tuesday, January 25, 2022)</title>
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[Federal Register Volume 87, Number 16 (Tuesday, January 25, 2022)]
[Proposed Rules]
[Pages 3729-3736]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01254]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 52
[NPS-WASO-32954; PPWOBSADC0; PPMVSCS1Y.Y00000]
RIN 1024-AE47
Visitor Experience Improvements Authority Contracts
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would implement the Visitor Experience
Improvements Authority given to the National Park Service by Congress
in Title VII of the National Park Service Centennial Act. This
authority allows the National Park Service to award and administer
commercial services contracts and related professional services
contracts for the operation and expansion of commercial visitor
facilities and visitor services programs in units of the National Park
System.
DATES: Comments must be received by March 28, 2022.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
proposed rule between 30 and 60 days after publication of this proposed
rule in the Federal Register. Therefore, comments should be submitted
to OMB by March 28, 2022.
ADDRESSES: You may submit your comments, identified by Regulation
Identifier Number (RIN) 1024-AE47, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail to: Commercial Services Program, National Park
Service, 1849 C Street NW, Mail Stop 2410, Attn: VEIA Rule Comments,
Washington, DC 20240.
Instructions: All submissions received must include the words
``National Park Service'' or ``NPS'' and the RIN (1024-AE47) for this
rulemaking. Comments received may be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information provided. The
NPS will not accept bulk comments in any format (hard copy or
electronic) submitted on behalf of others.
Docket: For access to the docket to read background documents or
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted by the date specified above in DATES to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information collection by
selecting ``Currently under Review--Open for Public Comments'' or by
using the search function. Please provide a copy of your comments to
the NPS Information Collection Clearance Officer (ADIR-ICCO), 12201
Sunrise Valley Drive, Reston, VA 20191 (mail); or <a href="/cdn-cgi/l/email-protection#cdbda5aca9bfa8ac92bda2a3a9be8da3bdbee3aaa2bb"><span class="__cf_email__" data-cfemail="c4b4aca5a0b6a1a59bb4abaaa0b784aab4b7eaa3abb2">[email protected]</span></a>
(email). Please include ``1024-AE47'' in the subject line of your
comments.
FOR FURTHER INFORMATION CONTACT: Kurt Rausch, Acting Chief of
Commercial Services Program, National Park Service; (202) 513-7202;
<a href="/cdn-cgi/l/email-protection#b9d2cccbcde6cbd8cccadad1f9d7c9ca97ded6cf"><span class="__cf_email__" data-cfemail="ea819f989eb5988b9f998982aa849a99c48d859c">[email protected]</span></a>. Questions regarding the NPS's information
collection request may be submitted to the NPS Information Collection
Clearance Officer (ADIR-ICCO), 12201 Sunrise Valley Drive, Reston, VA
20191 (mail); or <a href="/cdn-cgi/l/email-protection#30405851544255516f405f5e5443705e40431e575f46"><span class="__cf_email__" data-cfemail="ff8f979e9b8d9a9ea08f90919b8cbf918f8cd1989089">[email protected]</span></a> (email). Please include ``1024-
AE47'' in the subject line of your email request.
SUPPLEMENTARY INFORMATION:
Background
NPS Authorities To Contract for Commercial Visitor Services
The National Park Service (NPS) enters into concession contracts
with other entities to provide commercial visitor services in over 100
units of the National Park System. Examples of such services include
lodging, food, retail, marinas, transportation, and recreation. NPS
concession contracts generate approximately $1.6 billion per year in
gross receipts, while returning approximately $133 million in franchise
fees to the NPS. What was commonly known as the National Park Service
Concession Policies Act of 1965 (1965 Act), Public Law 89-249, provided
the first comprehensive statutory authority for the NPS to issue
concession contracts. Since the repeal of the 1965 Act, concession
contracts have been awarded under the Concessions Management
Improvement Act of 1998 (1998 Act), 54 U.S.C. 101901-101926. NPS
regulations in 36 CFR part 51 govern the solicitation and award of
concession contracts issued under the 1998 Act and the administration
of concession contracts issued under the 1965 and 1998 Acts.
The National Park Service Centennial Act (Centennial Act), 54
U.S.C. 101931-101938, established the Visitor Experience Improvements
Authority (VEIA) allowing the NPS to solicit, award, and administer
commercial services contracts for the improvement, modernization, and
expansion of commercial visitor facilities and visitor services
programs in units of the National Park System. The VEIA supplements but
does not replace the existing authority granted to the NPS in the 1998
Act to enter into concession contracts or any other existing NPS
authorities to provide commercial visitor services in units of the
National Park System. The VEIA is also separate from authorities
granted under the Office of Federal Procurement Policy Act and Federal
Acquisition Regulations.
[[Page 3730]]
Differences Between VEIA and Concessions
The VEIA is intended to provide additional tools to expand,
modernize, and improve the condition of commercial facilities and
visitor services using contracting models that differ from and are in
addition to the concession contracts used under the 1998 Act. These
models include management agreements and percentage lease agreements
(hereinafter referred to as percentage agreements) found in the private
hospitality industry, as well as other contract models that are
consistent with the VEIA. These models may be used to provide a variety
of commercial visitor services such as lodging, food, retail, marinas,
transportation, camping and recreation. The use of industry-standard
models may allow and encourage additional companies to bid on new
hospitality business opportunities in parks. The VEIA also provides
flexibility in the solicitation process. For example, the 1998 Act
requires the NPS to consider specific evaluation factors, while the
VEIA does not dictate such criteria. This flexibility may allow
businesses to more effectively respond to and be evaluated on how they
will meet visitor needs for the services being offered. The flexibility
of the VEIA also provides the potential to streamline the solicitation
process to reduce the burden on businesses submitting proposals,
including the ability to negotiate on the terms of the contract and
greater ability to modify or adjust operations under existing contracts
to reflect changes at the park or different visitor expectations during
the contract term. Finally, there are differences in the revenue
management and fee structure for contract models that may be used under
the VEIA. Under a management agreement, the NPS would pay the operator
a base fee plus an incentive fee. The incentive fee would be paid when
the operator meets facility maintenance, operating, and visitor service
goals. All other revenue would go to the NPS to directly fund
operations and improvements. Any increased financial return to the NPS
would be used to fund updates to real and personal property and provide
commercial visitor services. Under a percentage agreement, the operator
would retain the revenue and pay a fee to the NPS. This would be
similar to the concession contract model, although the fee structure
under a percentage agreement would include payment of a base fee plus a
percentage of revenue.
In addition to commercial services contracts, the VEIA authorizes
the NPS to enter into professional services contracts related to those
commercial services contracts. These may include consulting contracts
with hospitality and asset management experts for services such as
developing requests for proposals, condition assessments, and
operational and financial analysis.
Implementation of the VEIA
The Centennial Act requires the NPS to promulgate regulations
appropriate for implementation of the VEIA. 54 U.S.C. 101936. The
Centennial Act also states that the VEIA expires seven years after the
enactment of the law. 54 U.S.C. 101938. The NPS has consulted with
hospitality industry experts, including academic leaders, hospitality
asset management companies, hotel owners and operators, and state
agencies to assess current visitor service contract models and best
practices in the hospitality industry. The NPS engaged a nationally
recognized hospitality management consulting and asset management firm
to assist the NPS with developing contracts, requests for
qualifications and proposals, and solicitation, contract management,
and accounting practices.
The NPS learned that hospitality and other industry-standard
practices for commercial services contracts, like those authorized in
VEIA, typically include the use of a private bank account to hold the
owner's funds for expenditure by the operator. To be consistent with
applicable fiscal law, however, the NPS will not deposit Federal funds
into a private bank account when implementing VEIA. The proposed rule
contains alternative funding guidelines to mimic the benefits afforded
the industry-standard commercial services contracts as VEIA intended,
while still complying with applicable fiscal law.
The NPS has evaluated certain visitor services currently provided
under concession contracts that may be suitable for VEIA commercial
services contracts.
The NPS will provide information about the VEIA on the website for
the NPS Commercial Services Program at <a href="https://www.nps.gov/orgs/csp/index.htm">https://www.nps.gov/orgs/csp/index.htm</a>.
Proposed Rule
The proposed rule includes requirements and limitations applicable
to the VEIA that are directed by the Centennial Act. These requirements
and limitations would be promulgated in a new part 52 of title 36 CFR.
They are explained below.
The NPS may only issue a commercial services contract under the
VEIA if the Secretary of the Interior, in this proposed rule acting
through the NPS, determines that the contract will expand, modernize,
and improve the condition of commercial visitor facilities and the
services provided to visitors. Commercial services contracts issued by
the NPS under the VEIA must meet two additional criteria. First, the
contract must be necessary and appropriate for public use and enjoyment
of the National Park System unit where it is located. Second, the
contract must be consistent with the preservation and conservation of
the resources and values of the unit. These two criteria also must be
met for concession contracts.
The NPS may not award contracts under the VEIA for the provision of
certain outfitter and guide services, or to authorize the provision of
facilities or services for which the Secretary, in this proposed rule
acting through the NPS, has granted an existing concessioner a
preferential right of renewal under the 1998 Act. The NPS may award
contracts under the VEIA without regard to Federal laws and regulations
governing procurement by Federal agencies, except for those laws and
regulations related to Federal Government contracts that govern working
conditions and wage rates and any civil rights provisions otherwise
applicable thereto.
The NPS must award VEIA commercial services contracts through a
competitive selection process, and must publicly solicit proposals for
each commercial services contract before awarding such contract. The
NPS must prepare a request for proposals and publish notice of its
availability. The NPS may not award a commercial services contract
under the VEIA for a term greater than 10 years. The person or entity
awarded a contract under the VEIA will not receive leasehold surrender
interest in capital improvements (as those terms are defined by the
1998 Act at 54 U.S.C. 101915) constructed under the terms of the
contract.
Other than these basic requirements, the VEIA authorized the NPS to
design a flexible process for the solicitation and evaluation of
proposals. The NPS plans to adjust this process for solicitation and
evaluation of proposals to reflect hospitality and other industry
practices, accounting for any necessary NPS-specific conditions. In
addition to the statutory requirements governing the VEIA, the proposed
rule includes defined terms and other provisions that will govern the
administration of contracts under the VEIA. These provisions explain
solicitation, selection, and award procedures,
[[Page 3731]]
including information about how the Director will publicly solicit
proposals for a commercial services contract and how the Director will
evaluate proposals. Other provisions govern the terms of the contracts
themselves, including provisions related to termination, rate approval,
assignments of contracts, and general funds management. The proposed
rule also addresses access to information and records held by operators
related to their performance under commercial services contracts and by
contractors related to their performance under professional services
contracts.
Opportunity To Comment
The NPS is interested in receiving comments from the public on both
the proposed rule and the use of the VEIA. In particular, the NPS is
interested in responses to the following questions:
(1) Does the bid process outlined in the proposed rule provide
sufficient flexibility to allow bidders to suggest new services not
anticipated by the NPS?
(2) Does the bid process outlined in the proposed rule provide
sufficient opportunity to negotiate contract terms?
(3) What other best practices in hospitality contract models or bid
processes might the NPS adopt to achieve the goals of expanding,
modernizing and improving visitor services and the condition of
commercial facilities?
(4) Where does the NPS need to expand, modernize and improve the
condition of commercial facilities and visitor services?
(5) How should the NPS use the VEIA to improve the visitor
experience?
Compliance With Other Laws, Executive Orders, and Department Policy
Regulatory Planning and Review (Executive Orders 12866 and 13563).
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this proposed
rule is not significant at the proposed rule stage and will make a
separate significance determination at the final rule stage.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the Nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that agencies must base regulations on the best
available science and the rulemaking process must allow for public
participation and an open exchange of ideas. The NPS has developed this
proposed rule in a manner consistent with these requirements.
Regulatory Flexibility Act (RFA)
This proposed rule would not have a significant economic effect on
a substantial number of small entities under the RFA (5 U.S.C. 601 et
seq.). This certification is based on the cost-benefit and initial
regulatory flexibility analyses found in the report entitled ``Visitor
Experience Improvements Authority (VEIA) Proposed Rule Regulatory
Assessment (RA) and Initial Regulatory Flexibility Analysis (IRFA)''
which can be viewed in the docket for this rulemaking.
Congressional Review Act (CRA)
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
CRA. This proposed rule:
(a) Would not have an annual effect on the economy of $100 million
or more;
(b) Would not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions; and
(c) Would not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act (UMRA)
This proposed rule does not impose an unfunded mandate on State,
local, or tribal governments or the private sector of more than $100
million per year. The proposed rule does not have a significant or
unique effect on State, local or tribal governments or the private
sector. This proposed rule clarifies NPS procedures and does not impose
requirements on other agencies or governments. A statement containing
the information required by the UMRA (2 U.S.C. 1531 et seq.) is not
required.
Takings (Executive Order 12630)
This proposed rule does not effect a taking of private property or
otherwise have takings implications under Executive Order 12630. A
takings implication assessment is not required.
Federalism (Executive Order 13132)
Under the criteria in section 1 of Executive Order 13132, the
proposed rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. A
federalism summary impact statement is not required.
Civil Justice Reform (Executive Order 12988)
This proposed rule complies with the requirements of Executive
Order 12988. This proposed rule:
(a) Meets the criteria of section 3(a) requiring agencies to review
all regulations to eliminate errors and ambiguity and write them to
minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring agencies to
write all regulations in clear language and contain clear legal
standards.
Consultation With Indian Tribes (Executive Order 13175 and Department
Policy)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian tribes through a
commitment to consultation with Indian tribes and recognition of their
right to self-governance and tribal sovereignty. The NPS has evaluated
this proposed rule under the Department's consultation policy and under
the criteria in Executive Order 13175, and has determined that it has
no substantial direct effects on federally recognized Indian tribes and
that consultation under the Department's tribal consultation policy is
not required.
Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.)
This proposed rule contains new information collections. All
information collections require approval under the Paperwork Reduction
Act (PRA) of 1995. The NPS may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid OMB control number. OMB must approve the new reporting
and recordkeeping requirements identified below:
(1) Solicitation of Proposals--The VEIA requires that the NPS
solicit proposals for commercial services contracts through a
competitive process. The NPS may also award and administer related
professional services contracts. The solicitation process may include
one or more phases such as a request for qualifications followed by or
[[Page 3732]]
in concert with a request for more detailed information through a
request for proposals. The process could also include interviews with
respondents and a negotiation phase. The NPS will use the information
collected to evaluate and select the best operator to provide the
contracted services. Information submitted in response to a
solicitation may include, as applicable to the specific project, types
of information similar to the following:
<bullet> Information concerning the respondent's ability to comply
with the commercial service contract terms and conditions;
<bullet> Information that demonstrates that the respondent is a
qualified entity;
<bullet> Information that demonstrates the respondent's experience
and prior performance in operating similar facilities and providing
similar services;
<bullet> Information concerning the respondent's financial
capability;
<bullet> Information concerning the respondent's proposed approach
and methodology to deliver the services specified; and
<bullet> Information that the respondent provides in response to
other factors identified in the request for proposals.
(2) Reporting Requirements
(A) Commercial Services Operators--In order to monitor their
performance and make appropriate NPS management decisions, the NPS will
require operators providing commercial services under a VEIA contract
to provide information to the NPS through reports and plans such as the
following:
<bullet> Annual Plan that includes information summarizing prior
year operating activities, capital projects and facility condition
assessment, and financial performance, and outlining projected annual
operating and capital budgets, projected annual operating plans,
capital project plans and designs, and staffing and marketing plans;
<bullet> Monthly Performance Reports that include monthly financial
performance statements, capital project and operating performance
information; and
<bullet> Ad hoc Reports such as environmental or safety incidents
reports.
The above types of plans and reports to owners (e.g., NPS) are
standard for those providing commercial services in the hospitality
industry in the private and public sector. The NPS requires financial
data be submitted in accordance with Generally Accepted Accounting
Principles (GAAP); however, no standardized form or format is defined
for any plans or reports at this time. The NPS expects this to evolve
over the remaining years of the VEIA and may have forms and formats at
a later time. The NPS will obtain OMB approval for any changes in
reporting and/or recordkeeping requirements as they are developed.
(B) Professional Services Providers--Professional services
providers will be required to provide information to the NPS through
deliverables, reports and plans such as the following:
<bullet> Operators Annual Plan Review Report analyzing operator
prior year performance and operational, capital project and financial
plans for the upcoming year;
<bullet> Monthly Asset Manager Reports analyzing operator
operational, capital project and financial performance; and
<bullet> Commercial Services Contract Solicitation Support
Deliverables such as financial and business opportunity analysis
reports, condition assessment reports, and draft Request for
Qualifications/Request for Proposals documents for commercial services
contracts.
There is no standard format or form associated with these
information requests.
(3) Recordkeeping Requirements--Operators under commercial services
contracts and contractors under professional services contracts must
keep any records that the Director of the NPS may require for the term
of the contract and for five calendar years after the termination or
expiration of the contract to enable the Director to determine that all
terms of the contract are or were faithfully performed. The Director,
for the purpose of audit and examination, must have access to and the
right to examine all pertinent records, books, documents, and papers of
the operator, contractor, subcontractor, and any parent or affiliate of
the operator or contractor (but with respect to parents and affiliates,
only to the extent necessary to confirm the validity and performance of
any representations or commitments made to the Director by a parent or
affiliate of the operator or contractor).
Title of Collection: Administration of Visitor Experience
Improvements Authority, 54 U.S.C. 101936.
OMB Control Number: 1024-New.
Form Number: None.
Type of Review: New.
Respondents/Affected Public: Business entities desiring to enter
VEIA-authorized contracts with the National Park Service.
Total Estimated Number of Annual Respondents: 46 (Commercial
Services Operators: 18; Professional Services Providers: 28).
Total Estimated Number of Annual Responses: 100 (Commercial
Services Operators: 50; Professional Services Providers: 50).
Estimated Completion Time per Response: Average time (Varies from
24 hours to 800 hours, depending on respondent and/or activity).
Total Estimated Number of Annual Burden Hours: 7,016 hours.
Respondent's Obligation: Required to Obtain or Retain a Benefit.
Frequency of Collection: On occasion.
Total Estimated Annual Nonhour Burden Cost: $112,900 (for costs
associated with solicitations, start-up costs, and recordkeeping
requirements).
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) How the agency might minimize the burden of the collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of response.
Written comments and suggestions on the information collection
requirements should be submitted by the date specified above in DATES
to <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find this particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function. Please provide a
copy of your comments to the NPS Information Collection Clearance
Officer (ADIR-ICCO), 12201 Sunrise Valley Drive, Reston, VA 20191
(mail); or <a href="/cdn-cgi/l/email-protection#34445c55504651556b445b5a5047745a44471a535b42"><span class="__cf_email__" data-cfemail="cbbba3aaafb9aeaa94bba4a5afb88ba5bbb8e5aca4bd">[email protected]</span></a> (email). Please include ``1024-AE47''
in the subject line of your comments.
National Environmental Policy Act (NEPA)
This proposed rule does not constitute a major Federal action
significantly affecting the quality of the human environment. A
detailed statement under NEPA is not required. The NPS has determined
the proposed rule is categorically excluded under 43 CFR 46.210(i)
because it is
[[Page 3733]]
administrative, financial, legal, and technical in nature. In addition,
the environmental effects of this proposed rule are too speculative to
lend themselves to meaningful analysis. NPS decisions to enter into
contracts under the VEIA will be subject to compliance with NEPA at the
time the contracts are executed. The NPS has determined the proposed
rule does not involve any of the extraordinary circumstances listed in
43 CFR 46.215 that would require further analysis under NEPA.
Effects on the Energy Supply (Executive Order 13211)
This proposed rule is not a significant energy action under the
definition in Executive Order 13211; this proposed rule is not likely
to have a significant adverse effect on the supply, distribution, or
use of energy, and this rule has not otherwise been designated by the
Administrator of OIRA as a significant energy action. A Statement of
Energy Effects is not required.
Clarity of This Proposed Rule
The NPS is required by Executive Orders 12866 (section 1(b)(12))
and 12988 (section 3(b)(1)(B)) and by the Presidential Memorandum of
June 1, 1998, to write all rules in plain language. This means that
each rule the NPS publishes must:
(a) Have logical organization;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Have short sections and sentences; and
(e) Use lists and tables wherever possible.
If you believe that the NPS has not met these requirements, send
comments by one of the methods listed in the ADDRESSES section. To
better help the NPS revise the proposed rule, your comments should
specifically identify where the NPS could improve. For example, you
should tell the NPS the numbers of the sections or paragraphs you find
unclear, which sections or sentences are too long, the sections where
you would find lists or tables useful, etc.
List of Subjects in 36 CFR Part 52
Commercial services, Government contracts, National parks, Visitor
services.
In consideration of the foregoing, the National Park Service
proposes to add part 52 to title 36 of the Code of Federal Regulations
to read as follows:
PART 52--VISITOR EXPERIENCE IMPROVEMENTS AUTHORITY CONTRACTS
Subpart A--Authority and Purpose
Sec.
52.1 What does this part cover?
52.2 What is the purpose of a commercial services contract?
52.3 How are terms defined in this part?
52.4 What types of commercial services contracts may the Director
issue?
52.5 What types of professional services contracts may the Director
issue?
Subpart B--Solicitation, Selection, and Award Procedures
52.10 How will the Director solicit responses for the award of a
commercial services contract?
52.11 Where will the Director publish notice of the availability of
a request for proposals?
52.12 How long will respondents have to submit a response?
52.13 How will the Director share information with potential
respondents after issuing the request for proposals?
52.14 How will the Director evaluate responses and select the best
one?
52.15 When will the Director reject a response?
52.16 What options does the Director have in accepting or rejecting
a response?
52.17 Does this part limit the authority of the Director?
52.18 When must the selected respondent execute the contract?
52.19 When may the Director award the commercial services contract?
52.20 How will the Director solicit and award professional services
contracts?
Subpart C--Contract Provisions
52.25 What is the term of a commercial services contract?
52.26 When may the Director terminate a contract?
52.27 May an operator or professional services provider receive
leasehold surrender interest in capital improvements?
52.28 Are operator rates subject to approval by the Director?
52.29 May operators assign or encumber commercial services
contracts?
52.30 How may commercial services contracts be funded?
Subpart D--Information and Access to Information
52.35 What records must the operator and professional services
provider keep and what access does the Director have to records?
52.36 What access does the Comptroller General have to records kept
by operators and professional services providers?
Subpart E--Miscellaneous
52.40 Does this part affect concession contracts under part 51 of
this chapter?
52.41 Does the VEIA expire?
52.42 Severability.
Authority: 54 U.S.C. 101931-101938.
Subpart A--Authority and Purpose
Sec. 52.1 What does this part cover?
This part covers the solicitation, award, and administration of
commercial services contracts and related professional services
contracts. The Director solicits, awards, and administers these
contracts on behalf of the Secretary of the Department of the Interior
under the authority of the Act of August 25, 1916, as amended and
supplemented, 54 U.S.C. 100101 et seq., and Title VII of the National
Park Service Centennial Act, 54 U.S.C. 101931-101938. All commercial
services contracts and related professional services contracts must be
consistent with the requirements of this part. These contracts will
contain such terms and conditions as required by this part or law and
as otherwise appropriate in furtherance of the purposes of this part
and the Visitor Experience Improvements Authority (VEIA).
Sec. 52.2 What is the purpose of a commercial services contract?
The National Park Service (NPS) will use commercial services
contracts to expand, modernize, and improve the condition of commercial
facilities and commercial services provided to visitors in a park area.
Commercial services contracts are limited to those that are necessary
and appropriate for public use and enjoyment of the park area in which
they are located and consistent with the preservation and conservation
of the resources and values of the park area.
Sec. 52.3 How are terms defined in this part?
Award occurs when the Director and a selected respondent execute a
commercial services contract or related professional services contract
that creates legally binding obligations on the parties to the
contract.
Commercial services contract means a binding written agreement
between the Director and an operator awarded under the authority of
this part that authorizes the operator to provide services to visitors
within a park area under specified terms and conditions.
Contract means either a commercial services contract or a related
professional services contract issued under the authority of this part.
The Director may award contracts without regard to Federal laws and
regulations governing procurement by Federal agencies, with the
exception of laws and regulations related to Federal Government
contracts governing working conditions and wage rates, including the
Alaska National Interest Lands Conservation Act (16 U.S.C. 3101 et
seq.), 40 U.S.C. 3141-3144, 3146, and
[[Page 3734]]
3147 (commonly known as the ``Davis-Bacon Act''), and any civil rights
provisions otherwise applicable thereto. Contracts as defined in this
section are not contracts within the meaning of 41 U.S.C. 601 et seq.
(the Contract Disputes Act) and are not service or procurement
contracts within the meaning of statutes, regulations, or policies that
apply only to Federal service contracts or other types of Federal
procurement actions.
Director means the Director of the National Park Service (acting on
behalf of the Secretary), or an authorized representative of the
Director, except where a particular official is specifically identified
in this part.
Operator means an individual, corporation, or other legally
recognized entity that duly holds a commercial services contract.
Professional services contract means a binding written agreement
between the Director and a professional service provider awarded under
the authority of this part that authorizes the service provider to
provide hospitality consulting or other services to the National Park
Service related to commercial services contracts.
Professional services provider means an individual, corporation, or
other legally recognized entity that duly holds a professional services
contract.
Qualified entity means an individual, corporation, or other legally
recognized entity that the Director determines has the experience and
financial ability to carry out the terms of a commercial services
contract or professional services contract.
Respondent means an individual, corporation, or other legally
recognized entity, that submits a response for a commercial services
contract.
Response means the information an individual, corporation, or other
legally recognized entity provides to the National Park Service in
response to a request for proposals.
VEIA means the authority granted to the Director under Title VII of
Public Law 114-289 entitled ``Visitor Experience Improvements
Authority'' and codified at 54 U.S.C. 101931-101938.
Visitor services means accommodations, facilities, and other
services determined by the Director as necessary and appropriate for
public use and enjoyment of a park area provided to park area visitors
for a fee or charge by an individual or entity other than the Director.
Visitor services may include, but are not limited to, lodging,
campgrounds, food service, merchandising, tours, recreational
activities, guiding, transportation, and equipment rental. Visitor
services also include the sale of interpretive materials or the conduct
of interpretive programs for a fee or charge to visitors.
Sec. 52.4 What types of commercial services contracts may the
Director issue?
The Director may issue commercial services contracts for expanding,
modernizing, and improving visitor services consistent with the VEIA.
Examples of such contracts include, without limitation, management
agreements and visitor services percentage lease agreements (referred
to as ``percentage agreements'' for purposes of this part).
Sec. 52.5 What types of professional services contracts may the
Director issue?
The Director may issue professional services contracts that support
the National Park Service in soliciting, executing, and managing
commercial services contracts. Professional services contracts may
include asset management agreements under which a service provider
assists the National Park Service in overseeing and administering
commercial services contracts but does not itself provide visitor
services. Professional services contracts also may include contracts
for the provision of other consulting services to the National Park
Service such as developing requests for proposals, condition
assessments, operational or financial analysis, accounting, and other
related services.
Subpart B--Solicitation, Selection, and Award Procedures
Sec. 52.10 How will the Director solicit responses for the award of
a commercial services contract?
(a) The Director will award commercial services contracts through a
competitive selection process. The Director will issue a request for
proposals inviting responses for consideration by the Director. The
request for proposals will describe the terms and conditions of the
proposed commercial services contract and the procedures the Director
will follow to negotiate and award the commercial services contract.
(b) The terms and conditions of the request for proposals and the
proposed commercial services contract are not final until the Director
awards the commercial services contract.
(c) The solicitation process may include one or more phases, such
as a request for qualifications followed by or in concert with a
request for more detailed information through a request for proposals.
The process could also include interviews with respondents and a
negotiation phase.
(d) If the entity that will become the operator is not established
at the time of submission of a response, the response must contain
assurances satisfactory to the Director that the entity that will
become the operator will be a qualified entity as of the date of the
award of the commercial services contract and otherwise have the
ability to carry out the commitments made in the response.
Sec. 52.11 Where will the Director publish notice of the
availability of a request for proposals?
(a) The Director will publish notice of the availability of the
request for proposals at least once in the System for Award Management
(SAM) where Federal business opportunities are electronically posted or
in a similar publication if SAM is no longer used. The Director may
also publish notices electronically on websites, including social
media, and in local or national newspapers or trade magazines.
(b) The Director will make the request for proposals available upon
request to all interested persons. The Director may charge a reasonable
fee for a printed request for proposals.
Sec. 52.12 How long will respondents have to submit a response?
The Director will define the process and the timeline for
responding and entering into negotiations in the request for proposals.
The Director will not consider untimely responses.
Sec. 52.13 How will the Director share information with potential
respondents after issuing the request for proposals?
If the Director shares material information directly related to the
request for proposals with one potential respondent, the Director will
share the same information with all potential respondents who have
advised the Director of their interest in the request for proposals.
This does not apply to publicly available information.
Sec. 52.14 How will the Director evaluate responses and select the
best one?
(a) The Director will apply the selection factors set forth in the
request for proposals. The evaluation will include an assessment of the
respondent's written submittals in response to the request for
proposals and may also include information presented by the respondent
during request for qualifications, interview, and negotiation phases.
During this process, the Director may request written clarifications
from any respondent that has submitted a timely response.
(b) The Director will use selection factors to evaluate responses
that include compliance with the
[[Page 3735]]
requirements in the request for proposals, ability to comply with the
terms and conditions of the commercial services contract, a
demonstration that the respondent is a qualified entity, demonstrated
experience and prior performance in operating similar facilities and
providing similar services, financial capability, and the proposed
approach and methodology to deliver the services specified. The
Director may include other factors that are identified in the request
for proposals.
(c) The Director must determine that the commercial services
contract issued to the selected respondent will meet the objectives of
expanding, modernizing, and improving the condition of commercial
facilities and commercial services provided to visitors in the park
area.
Sec. 52.15 When will the Director reject a response?
The Director will reject any response if the Director makes any of
the following determinations:
(a) The respondent is not a qualified entity.
(b) The response is not responsive to the requirements in the
request for proposals. A response is not responsive if the Director
determines that it is not timely, does not meet the minimum
requirements of the proposed contract, or does not provide the
information required by the request for proposals.
Sec. 52.16 What options does the Director have in accepting or
rejecting a response?
(a) If no responsive responses are submitted, the Director may
cancel the solicitation. After cancellation, the Director may establish
new commercial services contract requirements and issue a new request
for proposals.
(b) The Director reserves the right to accept or reject any or all
responses received as a result of the solicitation, to waive minor
irregularities, or to negotiate with any respondent, in any manner
necessary, to serve the best interests of the National Park Service.
(c) No respondent or other person or entity will obtain compensable
or other legal rights as a result of an amended, extended, canceled, or
resolicited request for proposals for a contract.
Sec. 52.17 Does this part limit the authority of the Director?
Nothing in this part may be construed as limiting the authority of
the Director at any time to determine whether to solicit or award a
contract, to cancel a solicitation, or to terminate a contract in
accordance with its terms.
Sec. 52.18 When must the selected respondent execute the contract?
The selected respondent must execute the contract within the time
period established by the Director. If the selected respondent fails to
execute the contract in this period, the Director may select another
responsive response and enter into negotiations with that respondent,
or may cancel the solicitation and choose to resolicit the contract.
Sec. 52.19 When may the Director award the commercial services
contract?
The Director may award a commercial services contract at any time
after selecting the best response, the conclusion of negotiations, and
execution of the contract by the respondent.
Sec. 52.20 How will the Director solicit and award professional
services contracts?
The Director will advertise opportunities for professional services
contracts at least once in the System for Award Management (SAM) where
Federal business opportunities are electronically posted or in a
similar publication if SAM is no longer used. The Director may also
publish notices electronically on websites, including social media, and
in local or national newspapers or trade magazines. The Director will
evaluate and select professional services providers that are qualified
entities following the procedures described in the advertised
opportunity.
Subpart C--Contract Provisions
Sec. 52.25 What is the term of a commercial services contract?
A commercial services contract will generally be awarded for a set
term or for a base term plus option years, with the total term not to
exceed 10 years.
Sec. 52.26 When may the Director terminate a contract?
Contracts will contain appropriate provisions for suspension of
operations and for termination by the Director for default, including,
without limitation, unsatisfactory performance, or termination when
necessary to achieve the purposes of the VEIA.
Sec. 52.27 May an operator or professional services provider receive
leasehold surrender interest in capital improvements?
No. Operators and professional services providers will not receive
leasehold surrender interest in capital improvements, as those terms
are defined at 54 U.S.C. 101915.
Sec. 52.28 Are operator rates subject to approval by the Director?
(a) The Director may require prior approval of rates for services
provided to visitors under a commercial services contract.
(b) Generally, the Director will approve rates for services
provided to visitors based upon market demand, although the Director
may specify rates or rate methods for particular services based on
factors other than market demand, such as to ensure affordability to a
broad segment of visitors.
Sec. 52.29 May operators assign or encumber commercial services
contracts?
Commercial services contracts will include provisions that require
the Director's approval prior to any assignment or encumbrance of the
contract or any rights or interests under the contract to another
operator.
Sec. 52.30 How may commercial services contracts be funded?
(a) Commercial services contracts may use either of the following
two funding structures:
(1) Contract funds will be maintained in a Federal account and
operators will be provided ready access to those funds to pay for
agreed-upon expenses; or
(2) Contract funds will be provided to the operators, who will be
solely responsible for maintaining and expending the funds on agreed-
upon expenses.
(b) Commercial services contracts will clearly define what
contract-related funds shall be considered revenue collected for the
NPS and will provide for the periodic remittance of such funds to the
NPS.
Subpart D--Information and Access to Information
Sec. 52.35 What records must the operator and professional services
provider keep and what access does the Director have to records?
Operators and professional services providers must keep any records
that the Director may require for the term of the contract and for five
calendar years after the termination or expiration of the contract to
enable the Director to determine that all terms of the contract are or
were faithfully performed. The Director, or an authorized
representative of the Director, may access and examine all pertinent
records, books, documents, and papers of the operator, professional
services provider, and any subcontractor, parent, or affiliate of the
operator or professional services provider (but with respect to parents
and affiliates, only to the extent necessary to confirm the validity
and
[[Page 3736]]
performance of any representations or commitments made to the Director
by a parent or affiliate of the operator or professional services
provider).
Sec. 52.36 What access does the Comptroller General have to records
kept by operators and professional services providers?
The Comptroller General of the National Park Service, or an
authorized representative of the Comptroller General, may access and
examine all pertinent records, books, documents, and papers of the
operator, professional services provider, and any subcontractor,
parent, or affiliate of the operator or professional services provider
(but with respect to parents and affiliates, only to the extent
necessary to confirm the validity and performance of any
representations or commitments made to the Director by a parent or
affiliate of the operator or professional services provider) going back
five years from the closing date of the last fiscal year of the
operator or professional service provider.
Subpart E--Miscellaneous
Sec. 52.40 Does this part affect concession contracts under part 51
of this chapter?
No, nothing in this part modifies the terms or conditions of any
existing concession contract or the ability of the Director to enter
into concession contracts under part 51 of this chapter. The 1998 Act
(as that term is defined in part 51 of this chapter) remains in effect.
Sec. 52.41 Does the VEIA expire?
Yes. The Director may not award a contract under the VEIA after
December 16, 2023.
Sec. 52.42 Severability.
A determination that any provision of this part is unlawful will
not affect the validity of the remaining provisions.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-01254 Filed 1-24-22; 8:45 am]
BILLING CODE 4312-52-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.